By Angie Fletcher
Since 2015, businesses and banks across the country have been sued by plaintiffs alleging their websites fail to provide access to people with certain disabilities. Many more businesses and financial institutions have received demand letters from a Pittsburgh law firm offering to “work constructively” in fixing their websites, among other things, for a fee. Regardless of courts’ variances of their application of the Americans with Disabilities Act to websites, plaintiffs strong-arm their targets into settlement agreements by using favorable arguments from previous lawsuits that have held the ADA applies to websites.
The ADA became law in 1990, and it aimed to prohibit discrimination against individuals with disabilities. Title III of the ADA prohibits discrimination on the basis of disability in “places of public accommodation.” Initially, the term “places of public accommodation” was applied to physical locations (such as stores, restaurants, and other commercial businesses) that were open to the general public. Neither Title III nor any other part of the ADA specifically discusses “website accessibility” for the disabled, but proponents argue that “places of public accommodation” includes websites.
While plaintiffs continue to send demand letters and file lawsuits, the Department of Justice (enforcer of the ADA), has yet to issue its rules or regulations for website compliance with the ADA. Businesses have anticipated the DOJ’s technical guidelines since 2010, but the continued evolution of the Internet, mobile applications, accessibility tools and assistive technologies have partly caused the DOJ to delay issuing rules or regulations until 2018.
We encourage businesses to begin taking precautionary measures to assist in defending similar allegations and make their websites accessible to the disabled, along with our other recommendations outlined in this article.
Conduct an Online Website Compliance Self-Audit
Until formal rules and regulations are provided, the DOJ and plaintiffs have consistently suggested that websites will be considered ADA compliant if they follow the Web Content Accessibility Guidelines (WCAG-2.0) Level AA. WCAG-2.0 defines how to make web content more accessible to a wide range of people with disabilities and provides requirements for text alternatives, i.e., increasing font, braille, speech, symbols, or simpler language, prerecorded audio-only or video-only content, and color distinctions by separating the foreground from the background. A complete list of the WCAG-2.0 Guidelines can be found here.
A few websites (search “website compliance assessment”) will generate a compliance report simply by typing in your business website address. Within a few seconds, the assessment will detect errors and list the website’s content failures. The best use of this information is to retain a website vendor who understands the nuances of WCAG-2.0 and can assist with website redesign and changes. Many businesses have already begun the process of improving the accessibility of their website either internally or through the use of a reputable website developer.
Review Risk Management and Insurance Policies
Businesses should review their insurance policies to ensure coverage for accessibility discrimination claims for their websites. There is insurance that expressly covers ADA public accommodation discrimination claims, such as a “third-party liability” endorsement to employment practices liability insurance policies. An employment practices liability policy and media liability policy each may extend coverage for costs incurred in defending website accessibility claims. While an employment practices liability policy typically covers lawsuits filed by employees against their employers, it may by broad enough to extend coverage for discrimination and harassment claims brought by customers and third parties and provide reimbursement for costs incurred in defending a lawsuit in court, judgments and settlements. A media liability policy may cover claims arising out of a company’s media (websites and mobile applications) and other media activities. It is important to review your insurance policy terms with your risk management team or insurance carrier as some policies may include a broad exclusion for discrimination claims or gaps in coverage, thus barring coverage for a website ADA claim.
Engage Your Lawmaker
Currently, there are two bills in the House of Representatives that aim to amend the ADA: (1) H.R. 3765, ADA Education and Reform Act of 2015, and (2) H.R. 241, ADA Compliance for Customer Entry to Stores and Services (ACCESS) Act of 2015. Both bills would provide businesses with an opportunity to comply with the ADA before a civil action commences.
Introduced in January 2015, the ACCESS Act of 2015 seeks to amend the ADA by imposing a notice and compliance opportunity before commencement of a private civil action. The ADA Education and Reform Act of 2015 was introduced a few months later in October 2015, and promotes compliance through education, requires clarifications of the requirements for demand letters, and provides for a notice and cure period before the commencement of a private civil action. You can read more about these proposed legislative bills here and here.
Contact your congressional representative and request their support on these legislative actions.
The Internet, web-based applications, and mobile devices are becoming more prominent and remain an ever-present part of our lives. Plaintiffs’ firms are aggressively working with website testers and advocacy groups to test the limits of how the ADA applies to websites and other technology. In addition to our recommendations above, we advise that you keep continuous documentation of any efforts you undertake to make your website and other technology devices compliant. If you are contacted by plaintiffs or advocates about compliance violations, please contact us so that we can walk you through your options.
Angie Fletcher is a member of the firm's Banking and Financial Services division. She is located in the Denver office. For more information, please contact Angie or your usual Stinson Leonard Street contact.
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